Federalist No. 46: Madison's brilliance

Posted by David Hardy · 3 April 2005 09:24 AM

In Federalist No. 46, Madison calculates (quite accurately, BTW) that the new government could support a standing army of no more than 25,000 men, and

To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence. It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops. . . . Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms.

A useful quote, of course. But look at the brilliance of Madison's strategy....

The debate had, until then, been standing army vs. militia, and the federalists were getting the worst of it. The Constitution allowed Congress to form an army with no limitations save that it had to be funded no more than two years at a time (a carryover from British law) and Americans were seriously worried about a standing army (which might just take over the country, or be used by the national government to do so) and strongly supportive of defense by militia instead.

Federalist 46 deals with the issue in imaginative and brilliant form. Madison argues that standing army vs. militia is a false dichotomy. The nation can have both, and it is precisely the militia that makes the standing army a safe thing to have. Let Congress form the largest army it can possibly create, and it would still be greatly outnumbered by armed citizens answering to State-appointed officers. Madison thus neutralizes a key antifederalist argument, and demonstrates that the Army clause of the Constitution is no danger to freedom.

This of course doesn't do much for the "National Guard = militia" claim. With the dual enlistment requirement, Guardsmen must enlist in the regular Army (or other branch) Reserves. When he calls them to duty, the President doesn't use the constitutional power to call out the militia (I'm not even sure the statute implementing that power is still on the books), but legislation enacted pursuant to the Army clause.

"...officered by men chosen from among themselves,..., and united and conducted by governments possessing their affections and confidence."

This implies:
1) The leadership of the militia is self-appointed, and requires no governmental involvement, or approval.
2) Governments which do not possess their affections and confidence might exist, and could be opposed by the militias.
It would seem then that even the 'Commander-in-Chief' would not have authority over said militia.

Militia, as constructed, is a voluntary gathering of armed people, created from the people, not the government. Without individual rights to arms such a militia cannot be created.

To those who claim National Guard as the heir to 'militia' I say the Second Amendment was not repealed, but States Rights were (by the force of the Civil War), and so today's National Guard cannot meet the definition of militia. Furthermore, I hold that even the state governments do not hold jurisdiction over the militia, and thus that even state laws prohibiting private firearm ownership should be violations of the Second Amendment.

Although the Federalist papers are a very good source for understanding the Constitution, they are woefully inappropriate for understanding the Bill of Rights, since they were authored before the Bill of Rights were drafted and were written to convince people to ratify the Constitution without a Bill of Rights. See, The Federalist Papers, No. 84.

The key to understanding the 2nd Amendment is in the writings of those who opposed the Constitution. It was their objections and concerns which led directly to the adoption of the Bill of Rights and, of course, the 2nd Amendment.

so, when exactly did our "rights" become priveleges? it sounds alot like the federal govt. has (with no small aid from voter apathy)basically overidden the american public's greatest weapon against them. i've always heard the 2nd amendment was basically a provision for "squirrel hunting". how has this load of crap come to pass. i refuse to believe that it's "gang violence", or other crime. who would be stupid enough to pay thousands of dollars for an automatic weapon, and then perform a "drive-by" with it. although we're given the right to keep and BEAR arms (am i correct in assuming this means to use said arms in accordance with Jimmy's idea?) AGAINST A TYRRANICAL GOVERNMENT; the same government is slowly, but surely whitling away the populaces ability to compete equipment-wise with the very force that is often used to "quell uprisings". i'm not saying soccer-moms should carry AT-4 missiles, just that we as americans are revolutionary by nature, and that we really should PAY MORE ATTENTION TO WHAT OUR GOVERNMENT IS DOING IN OUR BEST INTEREST!!!!!!

With regard to the Second Amendment I can only see that
#46 is the clear endorsement of private gun ownership by
the "Father of the Constitution". Madison is even boastful
about the fact that American citizens owned firearms, an
advantage not enjoyed by their European counterparts.

The author of this piece reflects a common error of logic... that if something is in the Federalist Papers... then it reflects what is constitutional LAW. Madison is clearly speculating that state militias... under civic control, MIGHT serve this function. And one might even surmise this is what he had in mind when he drafted what became the Second. But the draft was changed by Congress from

The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country;

to

"free state".

The Bill Of Rights limits the power of the then new federal government. And one of its new powers was control to arm and discipline the new militia system.

But if Congress had this power... it also had to power to let the system suffer neglect. Since STATE security depended on their militias... the Second merely means what it says... the federal government could not disarm or prevent from mustering those in the state militias. And no, "the People" never meant everyone. They were the freemen of the day... and only white freemen were allowed into the militias. Read the Militia Acts of 1792.

One last thought, if those Militia Acts MANDATED all members have their own firearm and ammo... that's hardly a "right" in the sense of having a choice to own or not own. That right is simply unenumerated, covered by the Ninth... an amendment the social conservatives on the Right are trying to negate even as they bastardize the Second.

GS wrote: "To those who claim National Guard as the heir to 'militia' I say the Second Amendment was not repealed, but States Rights were (by the force of the Civil War), and so today's National Guard cannot meet the definition of militia."

Amusing theory. The powers Congress and the President have over the militias were NEVER amended away. We can EASILY identify those constitutional militias because the Constitution still gives Congress and the President the same authority... and those Constitutional Militias are clearly today's state National Guards.

And since the Guards are armed by the federal government... the Second is essentially moot... unless the feds stop arming them. Any other gun rights for other purposes is simply an unenumerated right covered by the Ninth. The Constitution never gave the federal government direct power over guns... which was left a matter for the states. There is indirect power under various clauses.

David Hardy wrote: "This of course doesn't do much for the "National Guard = militia" claim. With the dual enlistment requirement, Guardsmen must enlist in the regular Army (or other branch) Reserves. "

There was nothing in the Constitution to prohibit adding new functions to the militia system. In fact the law that started this integration was the 1903 Dick Act... formally known as

"An Act To promote the efficiency of the militia, and for other purposes"

Whereas the Militia Acts of 1792 required ALL able bodied white males to be in the state militias, this was no longer needed. All able bodies male citizens 18-45 were to be divided into an organized militia (aka the state national guards) and an unorganized militia made up of everyone else. There is NO legal function for the latter. Only the state militias are subject to federal powers.

And in the end, all the laws mandating the militia's integration with the Army could be ended with a simple vote. Abolishing the state militia system would require a constitutional amendment.

The author of this piece reflects a common error of logic... that if something is in the Federalist Papers... then it reflects what is constitutional LAW. Madison is clearly speculating that state militias... under civic control, MIGHT serve this function. And one might even surmise this is what he had in mind when he drafted what became the Second.

There is no error of logic here. The point of the Federalist Papers is not that they spoke of what was law but rather what the Constitution was intended to mean. The Federalist Papers were written by proponents of the Constitution. So they are a very good source regarding what the language of the Constitution stated. For example, the way that the Federalist Papers speak of "the militia" as being a pre-existing body consisting of all able-bodied freemen capable of bearing arms, tells us that the Constitution's references to "the militia" means the same, and has nothing to do with any state militias.

Madison is also not "clearly" speculating about state militias. As it is, he says absolutely nothing whatsoever about state militias and instead points out that the militia, resisting a standing army, would amount to half a million men. Half a million men at the time would mean a militia force of a huge portion of the population overall in comparison to today, and an even larger portion of people considering that much of the early American population were slaves, and the militia would only have consisted of the population of freemen. The entire National Guard as it currently exists is not half a million people.

But the draft was changed by Congress from

The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country;

to

"free state".

That's because "free state" is a more universal term then "free country," as not every governmental entity is a country.

The Bill Of Rights limits the power of the then new federal government. And one of its new powers was control to arm and discipline the new militia system.

But if Congress had this power... it also had to power to let the system suffer neglect. Since STATE security depended on their militias... the Second merely means what it says... the federal government could not disarm or prevent from mustering those in the state militias. And no, "the People" never meant everyone. They were the freemen of the day... and only white freemen were allowed into the militias. Read the Militia Acts of 1792.

State security was one reason, but a well-regulated militia was necessary to keeping the whole country secure as well, which is spoken of by both Madison and Hamilton in the Federalist papers, they Hamilton distinguishes between the militia and select militias, making very clear in Federalist 29 that "the militia" is all able-bodied freemen.

That "the people" only meant white freemen at the time is irrelevant. It is widely accepted now that "the people" means everyone period. Originally, the Bill of Rights only applied to the federal government, not the state and local governments, and only to white freemen, not women or anyone non-white. Today, it includes everyone, which means "the militia" includes all able-bodied adults, or at the very least, all able-bodied men, of all colors.

One last thought, if those Militia Acts MANDATED all members have their own firearm and ammo... that's hardly a "right" in the sense of having a choice to own or not own. That right is simply unenumerated, covered by the Ninth... an amendment the social conservatives on the Right are trying to negate even as they bastardize the Second.

Jury duty is also a right, but also mandated as well. Your claim that the right is unenumerated contradicts your assertion that because it an individual right to self-defense is not specifically mentioned in the Second, that the Second is not meant to protect it.

Amusing theory. The powers Congress and the President have over the militias were NEVER amended away. We can EASILY identify those constitutional militias because the Constitution still gives Congress and the President the same authority... and those Constitutional Militias are clearly today's state National Guards.

There are no Constitutional militias spoken of in the Constitution. That is you making things up. And the Federalist papers make very clear that the militia was all able-bodied freemen, not select militia. Federalist 29 and other writings of the time, such as in the Virginia Ratification debates, distinguish repeatedly between "the militia" and "select militia." That the Federalist Papers are not law is a cop-out, as they were written by the supporters of the Constitution to explain what it meant.

And since the Guards are armed by the federal government... the Second is essentially moot... unless the feds stop arming them. Any other gun rights for other purposes is simply an unenumerated right covered by the Ninth. The Constitution never gave the federal government direct power over guns... which was left a matter for the states. There is indirect power under various clauses.

The right should be able to be unenumerated, as the Constitution doesn't grant the government any authority to restrict it, but the Bill of Rights was written as a compromise with the anti-Federalists to win their support for ratification. The whole Bill of Rights itself was otherwise seen as unnecessary by the Federalists.

David Hardy wrote: "This of course doesn't do much for the "National Guard = militia" claim. With the dual enlistment requirement, Guardsmen must enlist in the regular Army (or other branch) Reserves. "

There was nothing in the Constitution to prohibit adding new functions to the militia system. In fact the law that started this integration was the 1903 Dick Act... formally known as

"An Act To promote the efficiency of the militia, and for other purposes"

Whereas the Militia Acts of 1792 required ALL able bodied white males to be in the state militias, this was no longer needed.

The Militia Acts of 1792 do not say anything about state militias, only the militia, and that the militia is to consist of all able-bodied freemen. This is again you making things up.

All able bodies male citizens 18-45 were to be divided into an organized militia (aka the state national guards) and an unorganized militia made up of everyone else. There is NO legal function for the latter. Only the state militias are subject to federal powers.

And in the end, all the laws mandating the militia's integration with the Army could be ended with a simple vote. Abolishing the state militia system would require a constitutional amendment.

That makes no sense. The actual state militia systems that do exist (there are some), are independent of the federal government and have nothing to do with the Constitution. The militia itself, consisting of all able-bodied free people capable of bearing arms, could never be abolished, as it exists independent of the Constitution and the government. It would be like saying that the electorate could be abolished via an amendment.

The constitution does not merely mention militia. It is giving the federal government a power. Yes, an assemblage of men with guns for the common defence is a militia. Those men are assigned officers and trained in accordance with the law.

It is like a law that states cigarette manufacturers are assigned a state inspector and must comply with all federal regulations. As a federal law, the states could not make their own cigarette manufacturers immune from federal law because the state had cigarette manufacturers before the Constitution or because smoking is a right that shall not be infringed.

And yes, an amendment can take away your right to vote. Congress could give itself power to elect a president for life. They could also abolish the Federal Court. This is why voting in members to Congress actually means something and should be taken seriously.

....

There is a comma between arms and shall. It is there to help you read the phrase correctly. The right of the people to keep and bear arms is a well regulated militia. Whenever power is given to the federal government, it must be taken from the people. In its power to regulate the militia, the government has been disenfranchised from infringing on the militia. Disarming people would harm the effectiveness of the militia.

States also shall not be able to infringe on the militia, for this military force is a shared agreement between the states and the federal government. The "right to keep and bear arms" is describing the right this protects, just as it is does three times in the first amendment. The first half of the amendment goes over the direct way in which the right is protected, one by one they match up to the second half of the amendment.

You people really draw up a lot of etraneous
Opinions to confuse the issue,the Constitution later on indicates that the government has the right to tax,raise armies,and develope post offices and postal rds.etc,etc.
So why would they arbitraliy put in the bill of rights that indicate these are individual rights,when they say the goverment can raise their own armies.
Quit mincing word,and theiries to confuse we need to protect the original federalist papers before the left,gets their hands on them!!!!

Phil:
The federal government uses the interstate commerce clause (Article 1, Section 8 Clause 3) to regulate tobacco. If a state wished to grow tobacco, make cigarettes, and require that they stay within the state borders, then the federal government could not regulate them. This is similar to the adoption of legalized marijuana in some states even though it is against federal law. The Interstate Commerce Clause is often misused to grow the power of the federal government.

A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

What is so damn hard about understanding this statement? Right of THE PEOPLE...SHALL NOT BE INFRINGED. WHY? to secure a free state, HOW? a well regualted militia. Well regulated...ARMED and READY in a minute.

Minutemen were CIVILIAN colonists who independently organized to form well-prepared militia companies SELF-TRAINED in weaponry, tactics, and military strategies. They were also known for being ready at a minute's notice, hence the name.

To infer that Madison, Hamilton or any of our fore fathers forgot how the revolution was won is folly. The continentals, could not have done it alone. Madison seems to be acknowledging this.

I believe we are following the advise of Madison in "Federalist # 46 with the issuance of Concealed Carry Pistol License's. In the State of Michigan the CCW is issued by the individual counties by a local board (appointed officers). You end up with a armed militia regulated at the local level, with local officers and all have been at least minimally trained on how to handle a weapon. With very little Federal involvement.